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DUTY THE ADVOCATE OWES THE COURT IS SUPERIOR

Dictum

While the point is conceded that an advocate should be sensitive and loyal to his client’s case, such sensitivity and loyalty should not exceed required boundaries, particularly the duty the advocate owes the court to present the law correctly, even if it is against his client. – Niki Tobi JSC. Okonkwo v. Cooperative Bank (2003)

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NATURE OF RELATIONSHIP BETWEEN CLIENT & COUNSEL

The nature of the legal relationship between Counsel and his client, which exists in this case between plaintiff and PW1, his Counsel, is one of an independent contractor and not one of principal and agent. (See Performing Right Society Ltd v. Mitchell &.Booker Palais de Danse Ltd (1924) 1 KB 702 at page 365 per McCardie J). It is not that of master and servant. Counsel is clearly not a servant of his client. It is accepted that where a client gives specific instruction to Counsel, such instruction must be adhered to. Where the nature of the specific instruction is in conflict with the manner of discharging his professional skills and interferes with his control of how to conduct the case of his client, Counsel is entitled to return the brief to his client. Counsel who is in law, the dominis litis is not bound to obey any such instructions. It is in the exercise of his apparent general authority in the discharge of his professional duties to his client, to have complete control how such instructions are to be carried out, and over the conduct of the case.

– Karibi-Whyte, JSC. Afegbai v. A.G Edo State (2001)

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WHO IS A LEGAL PRACTITIONER

However, a legal practitioner is a person entitled according to the provision of section 24 of Legal Practitioners Act, 1990 to practice as a barrister or as barrister and solicitor either generally or for the purpose of any particular office or proceedings.

– C. M. Chukwuma-eneh, J.S.C. Okafor v. Nweke (2007) – SC.27/2002

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LEGAL PRACTITIONERS ARE TO KEEP ABREAST WITH THE PRONOUNCEMENTS OF THE SUPREME COURT

The Supreme Court had re-emphasized the binding effect of its judgments on the lower courts in the case of ODEDO v PDP & ORS (2015) LPELR-24738(SC), where Kekere-Ekun, JSC stated at page 65, paras. B – E, as follows: “The Supreme Court is the highest court in the land. By virtue of Section 235 of the Constitution of the Federal Republic of Nigeria 1999 its decisions are final. In other words, a decision of the Apex Court settles the position of the law in respect of a particular issue and becomes a binding precedent for all other courts of record in Nigeria. Legal practitioners have a responsibility to keep abreast of the pronouncements of the Court and advise their clients accordingly. It is wrong to ignore decisions of this Court and seek to perpetuate a position that has already been pronounced upon. This is one of the causes of congestion in our courts and must be discouraged.”

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COUNSEL (APPEARING FOR HIMSELF) WILL HAVE HIS MISTAKES VISITED ON HIM

In Kotoye v Saraki 1995 NWLR (Pt.395) 256, in circumstances where the party (who is also a legal practitioner) took a decision not to appeal. Uwais J.S.C (as he then was) at Pages 7 and 8 said: “Any act of gambling involves risk taking and no gambler can claim not to be aware of that. When a counsel makes a mistake, such mistake or its consequence should not, in general, be visited on his client who, in most cases is a layman. Can the defendant/applicant who has been or is a legal practitioner be such a client? I certainly think not. There is therefore, no good reason given for the delay bringing this application.”

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WHERE COUNSEL HAS LIMITED AUTHORITY TO ACT FOR CLIENT

The general principle of the law is that at the trial of an action the authority of Counsel extends, when it is not expressly limited, to the whole of the court action and all matters incidental to it and to the conduct of the trial. See Sourendra Nath Mitra v. Srimati Tarubala Dasi (1930) 46 T.L.R. 191 PC. This general principle, however, does not and has not fettered the discretion of the court where it deems it fit so to exercise the same. See Adewunmi v. Plastex Ltd (1986) 3 NWLR (Pt. 32) 767 at 785. In this regard, it cannot be disputed that where Counsel by the authority of his client and with full knowledge of the facts consents to an order, there being no mistake or surprise in the case, the client cannot arbitrarily withdraw such consent, and the court may proceed to perfect the order but without prejudice to any application which the other side might make to the court to be relieved from his consent all the ground of fraud, mistake, misrepresentation or surprise or for other cogent and sufficient reason. See Harvey v. Croydon Union Rural Sanitary Authority (1884) 26 ChD. 249, CA, Holt v. Jesse (1876) 3 Ch. D. 177. But if it is established that Counsel agreed to the consent order being made under some misapprehension, the court will not hold him or his client to the agreement. See Shepherd v. Robinson (1919) 1 K.B. 474, C.A. Where the authority of Counsel has been expressly limited by the client and Counsel has in defiance consented to an order or judgment contrary to his client’s clear instructions, various considerations would appear to arise. If the limitation of authority is known or communicated to the other side, consent of Counsel outside the limits of his authority and in breach of the express instruction of his client will be inconsequential and of no effect. See Strauss v. Francis (1866) L.R. 1 Q.B. 379 at 382. Where, however, the limitation of authority is unknown to the other side who enters into the compromise in the belief that the opponent’s Counsel has the ordinary unlimited authority of his client, the position would appear, to some extent, to be fluid and uncertain. In such situation the learned authors of Halsbury’s Laws of England, 4th Edition, Volume 3, paragraph 1182 have formulated the applicable true rule under the circumstance as follows:- “But the true rule seems to be that in such case the court has power to interfere; that it is not prevented by the agreement of Counsel from setting aside or refusing to enforce a compromise; that it is a matter for the discretion of the court; and that when, in the particular circumstances of the case, grave injustice would be done by allowing the compromise to stand, the compromise may be set aside, even although the limitation of Counsel’s authority was unknown to the other side, or where clear and unequivocal instructions of limitations have been given.” I confess that I have given the above passage a most careful consideration and must fully and most respectfully endorse the same as the correct position of the present law. It is my view, therefore, that the court possesses the discretionary jurisdiction to examine the entire circumstances of a particular case, in order to determine whether or not the compromise entered into by Counsel should be sanctioned by the court. The remedy, being discretionary, must be exercised with the utmost care and with regard to the injustice or otherwise of allowing an order to stand. It is this jurisdiction that both courts below invoked and exercised in favour of the respondent as plaintiff in the originating summon.

— Iguh JSC. Vulcan Gases Limited V. Gesellschaft Fur Industries Gasverwertung A.G.(G.I.V.) ( SC.67/1995, 4th May 2001)

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DRAWING UNINTENDED CONCLUSIONS FROM JUDGES STATEMENTS

Sir James Bacon, V.C., said in Green’s Case (1874) L.R. 18 Eq C.A. 428:- “In the judgments which Judges pronounce, this is inevitable, that having their minds full, not only of the cases before them, but of all the principles involved in the cases which have been referred to, it very often happens that a Judge, in stating as much as is necessary to decide the case before him, does not express all that may be said upon the subject. That leaves the judgment open sometimes to misconstruction, and enables ingenious advocates by taking out certain passages, to draw conclusions which the Judge never meant to be drawn from the words he used.”

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